Protection of Information Bill

Andrew Layman:  PCB CEO

Some years prior to full democracy, the Natal Teachers Society wrestled with the apartheid paradigm.   As was to be expected at the time there were both liberal and conservative elements within the Society trying to direct its policies within the context of apartheid laws and practices.   Generally, I‘m pleased to report, the organisation took a stand against discrimination and identified quite closely with the unions that represented teachers in other education departments.   With hindsight, I suppose we were not nearly as activist as we thought we were, or as we should have been.   One of our leading members was an activist, however, and he became the ‘conscience’ of the Society, always pushing us towards a more liberal position.   But he had a breadth of vision which enabled him to suggest that the way to judge the quality or validity of legislation was to imagine that it had been promulgated by the political opposition.   Is law neutral to the degree that it cannot be used by one ruling party or another to advance its own hold on power? 

Now the current controversy surrounds the Protection of Information Bill.   From the media there is an almost universal outcry about infringement of the right to access of information.   There is also concern about the fact that severe punitive action will be permitted against people who are found to be in possession of classified information, notwithstanding their ignorance of its status.   Interpretations of the Bill by the media, and at least one opposition party, imply that it is a draconian piece of legislation that will lead to the suppression of lots of information by the state.    Yet the wording of the Bill itself does not convey a similar threat.    It tries – without much success, it seems to me – to reconcile the fact that this law would enable the withholding of information, while its predecessor, the Promotion of Access to Information Act was based squarely on the principle that the public has a right to know.    At least the attempt to explain it reveals an awareness of the paradox: it is the same ruling party that legislated for transparency that now wants to legislate for secrecy.   This is simplistic, of course.  At issue is information that is related to state security.    But it’s not just that.   Commercial information relating to “organs of state” may also be classified and protected by one or other of the categories of classification.   And, the power to classify resides with the head of an organ of state who may delegate this to an official of lesser rank.   The list of “organs of state” includes many entities whose affairs we have heard about recently, (Eskom, SAA, Ithala, Msunduzi Municipality, for example).  They might have preferred to keep them secret, and had the Bill been enacted already, they would have had the means to do so.  For all that the Bill specifically states: “classification ….. may not under any circumstances be used to – …..(b) conceal an unlawful act or omission, incompetence, inefficiency or administrative error”, the fact is that once the classification has been decreed, it would require some appeal to get it reversed.   In any event, people responsible for these misdemeanours never think they are guilty.

I suggest that what colours one’s interpretation of this proposed legislation is one’s suspicions of government motives, and – this might be even more significant – one’s concern that the law will be in the hands of even less trustworthy functionaries.   The Municipal Property Rates Act was hotly contested over months, if not years, before it finally made the statute books.    The political opposition mounted an extensive campaign against it, claiming that it opened the way for unreasonable exploitation of property owners.   The Bill itself did not contain such sinister suggestions.  On the contrary, it had a spirit which offered greater fairness and control of year-to-year rates increases.    But there was a significant omission, and this was adequate direction for the transition from the old legislation to the new.    In consequence, property owners in many places were fleeced by opportunist municipalities which produced rates policies that were not much more than just repetitions of the Act.  Neither of these outcomes was in the minds of the Act’s architects.   Those with suspicions were proved to be correct.   And so it might be in the case of the Protection of Information Bill.  It is instructive to reflect on the constitution.   “Everyone has the right of access to a) any information held by the state; and, b) any information that is held by another person and that is required for the exercise or protection of any rights.”    

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